Re: Psystar/Apple/First sale on Groklaw

[Rjack]

Alan Mackenzie wrote:
> Rjack <user@example.net> wrote:
>
> > Here's the point. If you are an owner of a computer program 
> > copyright, and license someone else to make a copy of your work 
> > on a physical medium that is owned by the licensee then 
> > "Notwithstanding the provisions of section 106(3)" gives the 
> > licensee (the lawful owner) of that copy of a computer program 
> > the right to dispose of that copy as long is it a transfer of 
> > ownership but not by rental, lease, or lending.
>
> > It's the PHYSICAL MEDIUM and not the MESSENGER that counts!
>
> Yes.  But is that transfer of ownership not still subject to the 
> license conditions?

Absoluely not! The only conditions applicable to that lawfully made
physical copy after first sale are the constraints imposed by the
deault Copyright Act.

You are dealing with a lawfully made physical copy.

> My understanding is that the court in Vernor vs. Autodesk judged 
> that the "no sale" term in the licence was illegitimate rather than
>  that the licence as a whole could be disregarded.

The license was applicable to the *intangible* copyrights that were
then lawfully fixed in a "copy":

17 USC 101. "Copies" are material objects, other than phonorecords, in
which a work is fixed by any method now known or later developed, and
from which the work can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or device.
The term "copies" includes the material object, other than a
phonorecord, in which the work is first fixed.

> In a common sense view, what Vernor was selling was a second hand 
> Autodesk licence, not the physical copy.

Not true. A lawfully made physical copy was sold.

> Presuambly, the buyer is as bound by the license as Vernor is.

Not true. The license ceases to exist after first sale with respect to
that lawfully made copy. Default copyright law applies to that
lawfully made physical copy's fixed but intangible copyrights.

17 USC sec. 109 assures the lawfully made physical copy can be *sold*.
17 USC sec. 117 assures that the intangible copyright fixed in that
lawfully made copy can be *used* on a computer.

You should have noticed by now my repetition of the qualifier
"lawfully made". If the copy is lawfully made i.e. "follows the
conditions of the license" the purpose of the license is exhausted.

Sincerely,
Rjack